The Supreme Court agreed to hear arguments on Obamacare, The Patient Protection and Affordable Care Act, by March. But will the Court call the non-insurance penalties a tax, which would bar the courts from considering the law’s constitutionality until after the first penalties have been paid in 2015, and avoid actually ruling on the merits? If they do, they would effectively eliminate the Affordable Care Act lawsuit mill for at least three years, avoiding having to take a position on the Act themselves.
The Court has scheduled five and a half hours of arguments, on four basic categories. The largest category (two hours) will consider whether Congress even had the power to enact the Affordable Care Act under Article 1 of the Constitution… did the “individual mandate,” the rule that everyone must have insurance, fall within Congress’ power under the commerce clause of Article 1?
An hour and a half is blocked out for arguments on whether, if that provision is unconstitutional, the entire law must be scrapped, despite its severability clause. The question is whether the “individual mandate” is so central that the Act collapses entirely if the mandate is removed. If it is, severability does not apply, as the Act itself has already been demonstrated to be non-severable.
One hour is dedicated to arguments on whether states can be required to pick up part of the cost of Medicaid reform to receive federal healthcare grants.
Finally, one hour of argument is reserved for arguing whether the Court should avoid ruling on the merits, but hold instead that the ruling must wait until 2014, when the provisions in question go into effect. One court, in fact, refused to rule on Obamacare at all on that very basis. In another case, a dissenting judge said that the issue would not ripen until 2015, when people actually paid the penalty in the form of a tax. Both of these arguments are built on the Anti-Injunction Act, which requires the tax required by a law to have actually been paid before they can challenge the law’s constitutional merits in court. In order to do that, the Court would have to hold that the penalty is actually a tax.
Since they have agreed to hear this case, one might wonder, “Why push it back to 2014 or 2015?” The argument seems to turn on whether the court simply wants to take the federal court system out of the 2012 election, into which it has been injected by Republican reaction to Obamacare. If so, they might make the Anti-injunction Act the basis for doing so.
The Obama Administration has urged the Court to accept this case, even though it is known as a conservative court. Perhaps that is the point. If a Supreme Court as conservative as the Roberts court is rules in favor of the administration, there will be much less room for argument on constitutional grounds against the Act, perhaps making the risk of a ruling against the Act worth the risk.